Can a passenger get a DUI in California?

In California, generally speaking, an intoxicated passenger cannot be charged with DUI. However, there are certain scenarios where it could happen. These include situations where:

1. the drunk passenger helps steer the vehicle,
2. the drunk driver switches seats with the passenger, and/or
3. the arresting officer is not sure who drove the car.

Note that a passenger can also be charged with other alcohol or drug-related offenses when a car is pulled over on suspicion of a DUI offense. These include:

• underage drinking,
• open container of alcohol,
• underage possession of alcohol or marijuana, and/or
• drug possession.

In California, the penalties for a DUI conviction may include:

• a misdemeanor charge,
• fines, and
• a driver’s license suspension by the DMV.¹

Can a passenger be charged with DUI for steering the car?

Under California law, any intoxicated passenger who touches the steering wheel or otherwise controls the car at some point can face DUI charges.

The law says that a person is “driving” a motor vehicle if the passenger touches the steering wheel or has control over the vehicle. This means that:

• if a passenger is an intoxicated person (or has a blood alcohol concentration of 0.08% or higher), and
• simply reaches over and helps steer the car (even if to avoid an accident),

the passenger can be charged with DUI. This is because the passenger:

• was intoxicated or under the influence, and
• technically “drove” the vehicle.

Note that the passenger, though, does have to be intoxicated or under the influence of alcohol or drugs for a DUI to occur. If a sober passenger touches a steering wheel, then no crime is committed – even if the driver is drunk.²

What happens if a drunk driver switches seats with a passenger?

If an intoxicated driver switches seats with a passenger prior to an officer reaching the vehicle, then technically the new “passenger” can be charged with DUI. This typically happens when the driver already has a prior DUI, is on probation, or is under 21, and they are trying to avoid the consequences.

Consider, for example, a situation when Mark and his girlfriend, Kim, are both in a car. Mark is driving while intoxicated. Kim is sober and is the passenger. Mark sees police sirens in the rear-view mirror and pulls the auto to the side of the road. Prior to the moment when the officer reaches the vehicle, Mark, trying to avoid a second DUI charge, switches seats with Kim and becomes the new passenger.

Here, it is likely that the officer will see what is taking place in the car and still charge Mark with DUI, even though he is sitting in the passenger seat. Even if the officer did not see Mark’s original placement in the car, the dash cam video footage may show it.³

What happens if an arresting officer is not sure who was driving in a DUI case?

Sometimes a police officer may mistakenly charge a passenger with DUI if the officer does not know who was driving the automobile.

This sometimes happens when there has been an accident, because of a drunk driver, and the police arrive at the scene after the car is stopped. Here, if there were multiple people in the car and they have exited the vehicle before the police arrive, the authorities will not know for certain who was driving. This means an officer may mistakenly charge someone, such as the passenger, for the DUI offense.

Please note, however, that this mistake will typically be corrected after the police investigate matters. Or, after a skilled DUI defense attorney analyzes the facts of the case.

Can a passenger be charged when a car is pulled over for DUI?

After a car is stopped on suspicion of a DUI, a passenger can face criminal charges for an alcohol or drug related criminal offense.

Depending on the facts of the case and their age, passengers can be charged with either:

• underage drinking,
• a violation of open container laws, or
• underage possession of alcohol.

In addition, if drugs are found in the vehicle, the passenger (and others in the auto) could be charged with drug possession.⁴

How do police use passengers in DUI investigations?

Passengers are valuable witnesses for prosecutors because they may be able to testify as to when the defendant consumed alcohol or drugs. Even if passengers do not want to cooperate with police, prosecutors can always subpoena them to be witnesses at trial, where they must answer questions under penalty of perjury.

In some cases, passengers can help a defendant’s case. For instance if the arresting officer smelled alcohol or marijuana coming from the car, the defendant can argue that the odor came from the passenger, not from them. This would mean that the police did not have “probable cause” to arrest the driver for DUI, and this could raise a “reasonable doubt” as to the defendant being “under the influence.”

Can a passenger drive the vehicle away to avoid towing?

After a DUI arrest, police can let a passenger drive the car away provided they are not impaired by alcohol or drugs themselves. In situations where the passenger is also intoxicated, the officer will probably have the vehicle towed. Then after the driver gets out of custody, they can retrieve it.

In California, what are the penalties for a DUI?

A first, second or third DUI offense in California is treated as a misdemeanor. The penalties for drunk driving may include:

• misdemeanor probation,
• fines,
• DUI school, and
• a driver’s license suspension (though it may be possible to continue driving if the defendant installs an ignition interlock device (IID) in the defendant’s cars).

These penalties will grow more severe under California law if either of the following is true:

• the defendant has prior DUIs on the defendant’s record at the time of the DUI arrest, or
• someone was injured as the result of the defendant driving while intoxicated.

Either of these could result in felony charges being filed or substantial jail time being imposed.⁵

Additional reading

For more in-depth information, refer to these scholarly articles:

• Passengers’ Decisions to Ride With a Driver Under the Influence of Either Alcohol or Cannabis – Journal of Studies on Alcohol and Drugs.
• Who’s in the car? Passengers as potential interveners in alcohol-involved fatal crashes – Accident Analysis & Prevention.
• Passengers of impaired drivers – Journal of Safety Research.
• Intoxicated Motor Vehicle Passengers Warrant Screening and Treatment Similar to Intoxicated Drivers – The Journal of Trauma: Injury, Infection, and Critical Care.
• Role of Passengers in Single-Vehicle Drunk-Driving Crashes: An Injury-Severity Analysis – Safety.

See our California DUI law firm’s related articles on California BAC legal limits, DUI breathalyzers / breath tests, public intoxication (PC 647f), reckless endangerment, DUI with child under 14 in car and child endangerment.

Legal References